Hottman v. Zimmer Inc. et al

Filing 23

ORDER Granting Defendants' 21 Motion to Dismiss Without Prejudice. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID C. HOTTMAN,
Plaintiff,

Case No. 15-cv-10731
Hon. Matthew F. Leitman

v.
ZIMMER, INC., et al.,
Defendants.
_________________________________/
ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS WITHOUT PREJUDICE (ECF #21)
BACKGROUND
On December 19, 2014, Plaintiff David C. Hottman (“Plaintiff”) filed a
Complaint in the Oakland County Circuit Court against Defendants Zimmer, Inc.,
Zimmer Holdings Inc., and Zimmer Orthopaedic Surgical Products, Inc.
(collectively, “Defendants”) for injuries he sustained in connection with a hip
replacement surgery. (See Compl., ECF #1-2 at 1, Pg. ID 8.)
In the Complaint, Plaintiff alleged that he underwent a right total hip
replacement, that Defendants designed and manufactured Plaintiff’s hip
replacement implant (the “Implant”), and that he was injured when the Implant
failed.

(See id. at ¶¶ 8-10, Pg. ID 9-10.)

Plaintiff sought recovery against

Defendants on five grounds: (1) Defendants failed to “timely and reasonably warn

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of material facts regarding the safety and efficacy” of the Implant; (2) the Implant
was defectively designed; (3) Defendants were negligent in the design and
advertisement of the Implant; (4) breach of express warranty; and (5) breach of
implied warranty. (See id. at ¶¶ 11-49, Pg. ID 10-17.)1
On February 27, 2015, Defendants removed Plaintiff’s lawsuit against them
to this Court (see Notice of Removal, ECF #1) and filed their Answer to the
Complaint on March 6, 2015 (see ECF #2). On June 17, 2015, Defendants served
interrogatories and requests for documents on Plaintiff, but received only
incomplete responses from Plaintiff’s counsel. (See Defs.’ Mot. to Compel, ECF
#11 at 1-2, Pg. ID 73-74.)

Shortly thereafter, Defendants’ counsel contacted

Plaintiff’s counsel to schedule a time to discuss the discovery deficiencies, but
received no answer. (See id. at 2, Pg. ID 74.)
On October 8, 2015, Plaintiff’s counsel informed Defendants that Plaintiff
had passed away and that he would need to confer with Plaintiff’s family to
determine whether to continue prosecuting this action against Defendants. (See
id.) Defendants emailed Plaintiff’s counsel on October 15, 2015 confirming their
conversation on October 8, and also asked whether Plaintiff’s family did indeed
wish to continue prosecuting Plaintiff’s claims. (See id.) Defendants’ counsel

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Plaintiff mis-numbered the paragraphs in his Complaint. The paragraphs
referenced in the parenthetical preceding this footnote begin beneath the heading
that reads “COUNT I”.
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received no response. (See id.) Defendants’ counsel then contacted Plaintiff’s
counsel again on November 17, 2015 via telephone and email and, again, received
no response. (See id.)
Plaintiff’s counsel remained unresponsive through mid-December of 2015.
(See id.) On December 11, 2015, the Court directed Defendants’ counsel to file a
motion to compel discovery, (see ECF #11-5 at 2, Pg. ID 111), which Defendants
filed on December 21, 2015 (see ECF #11). The Court then entered a Joint
Stipulated Order Compelling Discovery in which Plaintiff’s counsel agreed to
comply with Defendants’ requests for discovery by January 22, 2016. (See ECF
#16 at 2, Pg. ID 121.)

Plaintiff’s counsel, however, never responded to

Defendants’ requests for discovery. On February 29, 2016, Plaintiff’s counsel
officially withdrew from this case. (See ECF #20.)
On March 10, 2016, Defendants filed a motion to dismiss Plaintiff’s
Complaint without prejudice for failure to prosecute (the “Motion”). (See ECF
#21.) To date, no representative for Plaintiff or his estate has filed a response to
the Motion.
ANALYSIS
The Court applies the following four factors to determine whether dismissal
for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure is
appropriate:
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(1) whether the party’s failure is due to willfulness, bad
faith, or fault; (2) whether the adversary was prejudiced
by the dismissed party’s conduct; (3) whether the
[plaintiff] was warned that failure to cooperate could lead
to dismissal; and (4) whether less drastic sanctions were
imposed or considered before dismissal of the action.
Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (quoting Mulbah v.
Detroit Bd. of Educ., 261 F.3d 586, 590 (6th Cir. 2001)). And “[a]lthough no one
factor is dispositive, dismissal is proper if the record demonstrates delay or
contumacious conduct.” United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002).
The Court considers each factor in turn.
First, there is no evidence of willfulness or bad faith on the part of Plaintiff.
However, there is clear evidence of delay and unresponsiveness on the part of
Plaintiff and his counsel.

Prior to Plaintiff’s death, Plaintiff provided only

incomplete responses to Defendants’ requests for discovery. And it appears that
Plaintiff’s counsel took no steps to prepare responses to Defendants’ requests for
discovery after Plaintiff passed away. To date, Defendants have not received the
requested discovery.
Second, Plaintiff and his counsel’s failure to respond to Defendants’
discovery requests have prevented Defendants from effectively defending against
Plaintiff’s claims. Accordingly, Defendants have been prejudiced by Plaintiff’s
unresponsiveness. See Carpenter, 723 F.3d at 707 (“A defendant is prejudiced by
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a plaintiff’s dilatory conduct if the defendant is required to waste time, money, and
effort in pursuit of cooperation which [the plaintiff] was legally obligated to
provide.” (citation omitted)).
Third, Defendants mailed a copy of the Motion to Plaintiff in care of his
personal representative in an attempt to warn Plaintiff’s representative that the
matter faces dismissal.

However, Defendants “received back the envelope

containing Plaintiff’s service copy of the Motion to Dismissed marked ‘Return to
Sender / Deceased / Unable to Forward.’” (See ECF #22-1 at 2, Pg. ID 153.)
Fourth, the Court has considered less drastic sanctions to dismissal without
prejudice, but does not believe that any are appropriate given Plaintiff’s passing
and his counsel’s withdrawal. It also appears that Plaintiff has no representative
who intends to continue prosecuting this matter on his behalf.

In addition,

dismissal without prejudice is appropriate because it is a less drastic sanction than
dismissal with prejudice. See Jones v. Booker, 2013 WL 5566673, at *1 n.1 (E.D.
Mich. Oct. 9, 2013) (“[A] district court has the option of the less drastic sanction of
dismissing a case without prejudice for want of prosecution under Fed. R. Civ. P.
41(b).”).

Should a representative for Plaintiff wish to resume prosecuting

Plaintiff’s claims, he or she may have the opportunity to file a new complaint.

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In short, Defendants have made diligent efforts to move this case forward.
But it appears that Plaintiff has no representative who intends to pursue litigating
this matter on his behalf. Accordingly, Carpenter’s four factors counsel in favor of
dismissal without prejudice.
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that the Motion
(ECF #21) is GRANTED and Plaintiff’s Complaint is DISMISSED WITHOUT
PREJUDICE.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: May 19, 2016
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on May 19, 2016, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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